Monday, December 5, 2011

Ombija’s ruling exposes hypocrisy of our leaders

By LUKOYE ATWOLI
Sunday Nation 04 December 2011

In a week that saw the former President of Cote
d’Ivoire shipped off to the International Criminal Court (ICC) to answer
charges of crimes against humanity, including murder and rape, the High
Court in Nairobi made a ruling that sent shockwaves across the region. Judge
Nicholas Ombija ruled that Sudan’s President Omar Hassan Al-Bashir
should be arrested and handed over to the ICC should he ever set foot in
Kenya again.

The ruling has clearly ruffled many feathers, if the robust response by our government and regional bodies is anything to go by. Many have accused the judge of ignoring regional concerns, and some have even accused him of serving “foreign” masters.

Regional repercussions

The
executive arm of the government has vowed to appeal against the ruling,
and has suggested that the judiciary needs to be mindful of the
regional repercussions of its activities. From my point of view,
it is very clear that the Sudan is a very important component in the
regional peace and development efforts under the auspices of Igad.

It
is also clear that any disagreement with Sudan would be very
inconvenient for Kenya especially as we pursue terrorists into the heart
of Somalia.The crisis does not augur well for a country that aspires to brand itself as a neutral arbiter for peace in the region.

Apoplectic response

All
this is true and may, to a large extent, justify the government’s
apoplectic response to the warrant of arrest for President Al-Bashir.

There is only one small problem, I am afraid. The law, as they say, is an ass, and justice is meant to be blind!

Just
over a year ago we passed a Constitution to replace the older document
that had over several decades been reduced to an autocrat’s charter. Among
other provisions, our Constitution today provides that “the general
rules of international law shall form part of the law of Kenya”, and
that “any treaty or convention ratified by Kenya shall form part of the
law of Kenya under this Constitution”.

Article 3 (1) further places upon all persons the “obligation to respect, uphold and defend this Constitution”.
After
the passage of the Constitution, our Parliament went a step further and
enacted the International Crimes Act that, in practice, domesticates
the provisions of the Rome Statute. Attempts by a section of
parliamentarians to get the government to pull out of the treaty that
established the ICC were ignored by the executive.

Finally, the
government is on record indicating that we are cooperating with the ICC
and shall continue to do so in the matter of post-election violence
where several prominent Kenyan politicians are among the suspects.

A
disinterested observer, such as a judge might be, would be left in no
doubt that the government is very serious in its commitments to the Rome
Statute, and would expect therefore that any legitimate requests
emanating from the Hague would be implemented by all arms of the
government as required by our Constitution and local and international
statutes.

Rome Statute

The High Court ruling exposes the hypocrisy of our leaders who make laws they do not intend to implement.
As
long as we remain signatories to the Rome Statute and retain the
International Crimes Act, any other judge worth his salt would rule
exactly as Mr Justice Ombija did.